Opposition Brief — Nevada v. Watkins

cas Supreme Court, U.>

FILE b

FEB 12 199

OFFICE OF THE Cic.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

DISTRIBUTED

FEB Le 1991 No. 90-992

STATE OF NEVADA ET AL., PETITIONERS

JAMES D. WATKINS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

OPPOSITION OF THE FEDERAL RESPONDENTS

TO MOTION TO DEFER CONSIDERATION

The Solicitor General, on behalf of the Secretary of

Energy and the Department of Energy, hereby opposes the Motion to

Defer Consideration filed by the petitioners in this case.

Petitioners, the State of Nevada and various officials and

representatives of the State, seek review of a decision of the

United States Court of Appeals for the Ninth Circuit that rejected

their constitutional and statutory challenges to the implementation

of the Nuclear Waste Policy Act, 43 U.S.C. 10101 et seq. Pet. App.

1-37. In that statute, congress has directed the Department of

Energy to characterize a site in Nevada known as Yucca Mountain as

a potential location for a permanent underground nuclear waste

-2-

repository. 43 U.S.C. 10133{(a). Petitioners seek to defer

consideration of their petition for a writ of certiorari in this

case until disposition of another petition, not yet filed, in a

separate case brought by the State against the Bureau of Land

Management, an agency of the Department of the Interior. That

agency granted a right-of-way pursuant to the Federal Land Policy

and Management Act, 43 U.S.C. 1761, which permits the Department

of Energy to use public lands in the vicinity of Yucca Mountain for

the site characterization program. The district court dismissed

the State's complaint challenging the right-of-way for lack of

standing, and the court of appeals affirmed. 918 F.2d 854 (1990)

(copy attached). The Department of Energy is not a party to the

latter case.

Although in each case the State is attempting to prevent

the carrying out of site characterization activities, in this Court

each case presents distinctly different issues. In the present

case, No. 90-992, the State presents several direct challenges to

the constitutionality of the Nuclear Waste Policy Act, as well as

to the Department of Energy's implementation of the statute, all

of which the court of appeals rejected on their merits. Pet. App.

13-37. In its complaint against the Bureau of Land Management, the

State included some of these same claims, but the court of appeals

decided only that the complaint had failed to allege any basis for

satisfying the standing requirements of Article III. 918 F.2d at

855-858. There are no common questions, and thus nothing about the

- 3-

relationship petween the two cases that would warrant deferring

disposition of the petition in No. 90-992.

Moreover, delay in the consideration of No. 90-992 will

result in continued frustration of the Congressional mandate to

characterize the Yucca Mountain site. In order to carry out this

program, the Department of Energy must obtain permits from State

agencies exercising delegated authority under the Clean Air Act,

42 U.S.C. 7401 et seq., and the Safe Drinking Water Act, 42 U.S.C.

300f et seg., as well as a permit to appropriate water for the

project. The State's motion fails to mention the fact that the

State has rejected the Department of Energy's permit applications

solely because of the effect of three state legislative enactments

purporting to make site characterization activities illegal under

state law. Pet. App. 9-11. As a result, the United States filed

suit more than a year ago in the United States District Court for

the District of Nevada seeking an injunction requiring the State

to process the applications. United States v. State of Nevada, No.

CV-S-90-065~-HDM. The United States argues that these state laws

have been preempted by the Nuclear Waste Policy Act. This

contention was subsequently sustained in the court of appeals

decision under review in No. 90-992, which originated in the court

of appeals as a separate proceeding.

In response to the repeated request of the State, the

district court in United States v. State of Nevada, supra, first

stayed proceedings pending the court of appeals decision, and now

has stayed disposition of the United States' motion for summary

—

judgment pending the disposition of the petition for a writ of

certiorari filed in No. 90-992 (Orders dated May 23, 1990, and

December 14, 1990, copies attached). Any further delay in the

disposition of the petition is significantly prejudicial to the

ability of the Department of Energy to carry out the will of

Congress.

CONCLUSION

For the reasons stated above, the motion to defer

consideration should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

FEBRUARY 1991

854

the crime.” Runco, 873 F.2d at 1232.

Thus, there was sufficient evidence to sup-

port Hadley’s conviction on count eight.

Vv

{12} Finally, Hadley contends that the

district court erred by imposing a sentence

not in accordance with the Sentencing

Guidelines for his conviction on count sev-

en. The district court did not apply the

Sentencing Guidelines in imposing a 30-

year sentence on that conviction. The

court did follow the Sentencing Guidelines

when it sentenced Hadley to nine years in

prison on counts eight and nine.

Hadley’s contention is without merit.

We have held that the Sentencing Guide-

lines do not apply to conduct that occurred

before November 1, 1987. United States

v. Gray, 876 F.2d 1411, 1418 (9th Cir.1989),

cert. denied, — U.S. ——, 110 S.Ct. 2168,

109 L.Ed.2d 497 (1990). There is no dis-

pute that the conduct underlying the count

seven conviction occurred in October 1987,

prior to the effective date of the Sentenc-

ing Guidelines. Thus, the district court did

not err when it declined to apply the guide

lines to count seven.

AFFIRMED. ——

STATE OF NEVADA,

Plaintiff-Appellant,

v.

Robert F. BURFORD, Director of Bureau

of Land Management, Department of

Interior; Edw F. Spang, Nevada

State Director, Bureau of Land

Management, D ment of Interior,

Defendants—Appéllees.

No. 89-15272.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Aug. 16, 1990.

Decided Nov. 14, 1990.

State of Nevada brought action chal-

lenging Bureau of Land Management's

-

918 FEDERAL REPORTER, 24 SERIES

grant of right-of-way to Department of En-

ergy to conduct site characterization study

of proposed nuclear waste repository. The

United States District Court for the Dis-

trict of Nevada, Philip M. Pro, J., dismissed

action, 708 F.Supp. 289, and State ppealed.

The Court of Appeals, Wallace, Circuit

Judge, held that Nevada failed to show

that it would suffer concrete and immedi-

ate injury as result of grant of right-of-

way, and did not have standing to chal-

lenge grant.

" Affirmed.

1. Federal Courts €557

Where district court has inadvertently

neglected to dismiss action but it is clear it

intended its order to terminate action,

Court of Appeals - treats action as dis-

missed.

2. Federal Courts 4-555

Order which dismissed complaint but

which did not dismiss underlying action

was appealable, where it was clear that

ruling by district court was meant to be

dispositive of action. 28 U.S.C.A. §§ 1291,

1331 .

3. Federal Civil Procedure 103.1

Federal Courts €-12 - -

“Case or controversy” limitation in ar-

ticle III of the Constitution requires that

federal courts visit threshold question of

standing in every federal case; in order to

clear this jurisdictional] hurdle, complaining

party must demonstrate injury in fact.

U.S.C.A. Cons} Art. 3, § 1 et seq.

4. Health and Environment ¢25.15(4)

State of Nevada failed to show that it

would suffer concrete and immediate injury

as result of Bureau of Land Management's

grant of right-of-way to Department of En-

ergy to conduct site characterization study

of proposed nuclear waste repository, and

did not have standing to challenge grant;

land was owned by federal government,

and State did not allege that it used site for

STATE OF NEV. v. BURFORD

eae a Cte an 918 F.2d 854 (9h Cir. 1990)

any purpose. Nuclear Waste Policy Act of,

1982, § 2 et seq., as amended, 42 U.S.C.A.

§ 10101 et seq.; Federal Land Policy and

Management Act of 1976, § 102 et seq., 48

U.S.C.A. § 1701 et seq.; National Environ-

mental Policy Act of 1969, § 2 et seq., 42

US.C.A. § 4821 et seq.; U.S.C.A. Const.”

Art. 3, § 1 et seq.

855

JI

In February of 1983, Nevada was noti-

fied that certain public lands near Yucca

Mountain were under consideration as a

national repository for the disposal of nu-

clear waste. Four years later, Congress

decided to concentrate waste repository de-

velopment efforts on:the Yucca Mountain

— _ site. Accordingly, Congress amended the

3

Harry W. Swainston, Deputy Atty. Gen.,

Carson City, Nev., for plaintiff-appellant.

George W. Vancleve, US. Dept. of Jus-

tice, Washington, D.C., for defendants-ap-

pellees.

Appeal from the United States District

Court for the District of Nevada.

Before WALLACE, ALARCON and

WIGGINS, Circuit Judges.

WALLACE, Circuit Judge: .

{1,2} Nevada appeals from the dismis-

sal of its complaint against the Bureau of

Land Management (Bureau), in which Ne-

vada alleges that the Bureau improperly

granted a right-of-way to the Department

of Energy (Department) to conduct site

characterization studies at Yucca Moun-

tain, Nevada. The district court concluded

that Nevada lacked standing to pursue this

action, and dismissed the complaint. The

district court exercised jurisdiction pursu-

ant to 28 U.S.C. § 1331. Our court has no

jurisdiction to review a dismissed com-

plaint; a judgment is not final until the

underlying action is dismissed. Where the

district court has inadvertently neglected

to dismiss the action but it is clear it in-

tended its order to terminate the action, we

treat the action as dismissed. Kilkenny v.

Arco Marine: Inc., 800 F.2d 853, 855-56

(9thn Cir.1986), cert. denied, 480 U.S. 934,

107 S.Ct. 1575, 94 L.Ed.2d 766 (1987).

Here it is clear that the ruling by the

district court was meant to be dispositive

of the action. Therefore, we have jurisdic-

tion over this timely appeal under 28 U.S.C.

§ 1291. We affirm.

Nuclear Waste Policy Act (Waste Act), 42

US.C. §§ 19101-10270, to require that site

characterization activities proceed solely at

Yucca Mountain. Jd § 10133(a). Site

characterization consists of extensive test-

ing conducted by the Department in order

to evaluate the suitability of a site for the

location of a repository. Jd § 10101(21).

‘In order to aid the Department in its site

characterization activities, the Waste Act

provides, :

{t}o the extent that the taking of any

action related to the site characterization

of a site ... requires a certificate, right-

of-way, permit, lease, or other authoriza-

tion from a Federal agency or officer,

such agency or officer shall issue or

grant any such authorization at the earli-

est practicable date, to the extent permit-

ted by the applicable provisions of law

administered by such agency or officer.

42 U.S.C. § 101401) (emphasis added).

Pursuant to this section, the Department

applied to the Bureau in November 1987

for a right-of-way over public land near

Yucca Mountain. This land is administered

by the Bureau under the Federal Land

Policy and Management Act of 1976 (Land

Act), 43 U.S.C. §§ 1701-1784 which directs

the Bureau to manage the land in a way

“that will best meet the present and future

needs’ of the American people.” Jd

§ 1702(c). On January 6, 1988, the Bureau

granted to the Department a 13 year right-

of-way over 51,632 public acres near Yucca

Mountain, and authorized the Department

to undertake necessary site character-

ization activities on that land in accordance

with the Department’s Plan of Develop-

ment.

Under this plan, the Department intends

to excavate several exploratory shafts and

conduct a variety of scientific tests. The

856

Department has stated that site character

ization activities should not interfere with

any current or planned activities on the

lands within the right-of-way. It promises”

“to return lands disturbed by site charac-

terization to a stable ecological state with a

form and productivity similar to the predis-

turbance state.” Moreover, the -rightof-

way granted by the Bureau prohibits the:

disposal] of any hazardous materials on the

land, and states that it “does not convey

any rights for the construction or initial

operation of a nuclear waste repository.”

Nevada filed an action in the district

court challenging the grant of this right-of-

way. Nevada alleged that the grant violat-

ed requirements in both the Land Act and

the National Environmental Policy Act (En-

vironmental Act). In addition, it claimed

that the Bureau’s actions violated Nevada’s

constitutional right, including that © ‘the

right-of-way rendered meaningless Neva-

da’s political right to object to its selectiqn

as a waste repository site. The district

court determined that Nevada lacked

standing to pursue the action, and conclud-

ed that the constitutional claims were with-

out merit.

4

II

We review de novo the district court’s

legal conclusion that Nevada lacks stand-

ing. Bruce v. United States, 159 F.2d 755,

758 (9th Cir.1985). Moreover, for purposes

of this review, we must construe the com-

plaint in favor of Nevada, and accept as

true all of Nevada’s material allegations.

Warth v. Seldin, 422 DS. 490, 501, 95 S.Ct.

2197, 2206, 45 L.Ed.2d 343 (1975).

{3] .The “case or cqntroversy” limitation

in article III of the Constitution requires

that federal courts visit the “threshold

question” of standing in every federal case.

Id. at 498, 95 S.Ct. at 2205. In order to

clear this jurisdictional hurdle, a complain-

ing party must demonstrate an injury in

fact. Valley Forge Christian College v.

Americans ‘"vited for Separation of.

Church and State, Inc., 454 U.S. 464, 473,

102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982)

(Valley Forge). The Supreme Court has

held that this constitutional injury require-

918 FEDERAL REPORTER, 2d. SERIES

ment “embraces three related elements: ay"

an actual or threatened injury, (2) which is*

fairly traceable to the defendant's allegedly’ 3

unlawful conduct, and (8) which is likely ta

be redressed.by the relief requested. | See, P

Allen v. Wright, 468 U.S. 787, 751, 104!

S.Ct. 8815, $324, 82 L.Ed.2d 556 (1984), (ai

len); Valley Forge, 454 US: ‘at 472, 102?

S.Ct. at 758; Alaska Fish & Wildlife Fed\4

eration v. Dunkle, 829 F.2d 988, 987 (9th -*

Cir.1987), cert. denied, 485 U.S. 988, 108 /

S.Ct. 1290, 99,.L.Ed.2d 501_.(1988), ae: i

[4] To satisfy the first of these require ‘

ments, Nevada must show that it “has <

been or will-in fact be perceptibly harmed)? -

by” the decision of the Bureau to grant the} *

rightof-way. United States v. Students ‘

Challenging Regulatory ‘Agency ‘Prose:

dures (SCRAP), 412 U.S. 669, 688, 98 S.Ct?

2405, 2416, 87 LEd.2d 254 (1973). Thus, 4

Nevada must demonstrate that it has suf-

fered or will in fact suffer “concrete and: |

immediate” injury on account of the right- 7

of-way grant. Rapid Transit Advocates, |

Inc. v. Southern California Rapid Tran. | ;

sit District, 152 F.2d 373, 878 (9th Cir. *

1985). This it has failed to do. oe %

Nevada's complaint contains allegations’

that the Bureau’s decision to issue the ¥

right-of-way violated several constitutional 4@

and statutory provisions. - For example,’ 4

Nevada contends that the Bureau violated’

requirements of the Land Act by issuing’ ’

the right-of-way because in order to permit’ 4

the Department to-occupy the land sur* |

rounding Yucca Mountain, the Bureau was'

required to use ‘the withdrawal preoaaie’ 3

specified in 43 U.S.C. § 1714. - Nevada fur’ §

ther argues that{the environmental assess-! «

ment accepted by the Bureau in connection’ ,

with the right-of-way grant is insufficient #

to satisfy the requirements imposed by the’ %

Environmental Act. In addition, Nevada' §

contends that issuance of the right-of-way’ *

violates many constitutional provisions, in-. 3

cluding the tenth amendment. rg

However, the complaint is silent as to.

how these alleged violations have resulted

in.jnjury to Nevada. “[A]n asserted right’

to have the Government’ act in accordance

with law is not suffi icient, standing alone,

A= wat SI Ae KR

+ oe

STATE OF NEV. v. BURFORD

857

Cite as 918 F.2d 854 (9th Cir. 1990)

to confer jurisdiction on a federal court.”

Allen, 468 U.S. at 754, 104 S.Ct. at 3326;

see also Diamond v. Charles, 476 US. 54,

62, 106 S.Ct. 1697, 1703, 90 L.Ed.2d 48

(1986) (“The presence of a disagreement,

however sharp and acrimonious it may be,

is insufficient by itself to meet Art. III's

requirements.”). The federal government,

not Nevada, owns the land in question.

Moreover, Nevada did not allege in its com-

plaint that it uses the land surrounding

Yucca Mountain for any purpose. Even

assuming that the right-of-way grant vio-

lates the Land Act, the Environmental Act,

and the Constitution, Nevada fails to show

how those violations result in injury to

Nevada. We agree with the district court

that Nevada’s claims merely “constitute a

generalized grievance that the [Bureau] is

not acting in a way in which [Nevada]

maintains is in accordance” with federal

laws. Nevada v. Burford, 708 F.Supp.

289, 295 (D.Nev.1989) (Burford). This is

insufficient to demonstrate standing. See

Allen, 468 U.S. at 754, 104 S.Ct. at 3326;

Valley Forge, 454 U.S. at 482-83, 102 S.Ct.

at 763-64; Schlesinger v. Reservists Com-

mittee to Stop the War, 418 U.S. 208, 223

n. 13, 94 S.Ct. 2925, 2933 n. 13, 41 L.Ed.2d

706 (1974). ,

In addition to contending that the right-

of-way grant violated several federal stat-

utes and the Constitution, Nevada asserts

that its political right to object to its selec-

tion as the host for a nuclear waste reposi-

tory has been rendered meaningless by the

Bureau’s action. It is clear that a state

may demonstrate standing by asserting an

injury to a sovereign interest. See Alfred

L. Snapp & Son, Inc. v. Puerto Rico, 458

U.S. 592, 601, 102 S.Ct 3260, 3265, 73

L.Ed.2d 995 (1982) (Snapp). What consti-

tutes a state’s sovereign interest is not free

from doubt. /d But in this appeal, we

need not analyze its nature or parameters.

Nevada argues that one of its sovereign

interests—the right to object in the political

arena to the selection of Yucca Mountain

_ as a waste repository—has been infringed.

‘Assuming such an identifiable sovereign

interest, Nevada’s argument ignores the

fact that the decision of whether to con-

struct the repository at Yucca Mountain is

many years and numerous procedural hur’

dles away. For example, if the Depart:

ment determines that Yucca Mountain is an.

appropriate site after site characterization

is completed, the Department must hold

public hearings near the site to receive

comments regarding its suitability. 42

U.S.C. § 10134(a). Following this, the De-

partment must make a recommendation to

the President whether to construct the re-

pository, who in turn must decide whether

to recommend the site to Congress. /d

Within 60 days of the President’s recom-

mendation to Congress, the state in which

the recommended site is located may file a

notice of disapproval with Congress. /d.

§ 10136(bX2). If such a notice is filed, the

site selection is disapproved unless Con-

gress passes a resolution as required by

the Waste Act within 90 days. /d

§ 10135(c). We deal here only with the

decision by the Bureau to grant a right-of-

way, the only “direct consequence [of

which] is that the site characterization pro-

cess will proceed to the next step in accord-

ance with the [Waste Act].” Burford, 708

F.Supp. at 297. Any claim by Nevada that

site characterization will inevitably lead to

the designation of Yucca Mountain as a

repository site is mere speculation, and

“unadorned speculation will not suffice to

invoke the federal judicial power.” Simon

v. Eastern Kentucky Welfare Rights Or-

ganization, 426 U.S. 26, 44, 96 S.Ct. 1917,

1927, 48 L.Ed.2d 450 (1976). Clearly, the

right-of-way decision has not stripped Ne.

vada of its right to participate in the site

characterization process or of its right to

object to the selection of Yucca Mountain

as a repository. Thus, because Nevada has

failed to show how it has been injured in

this respect, its claim of standing based on

its asserted sovereign interest fails.

In its complaint, Nevada also alleges that

the site characterization process will dis-

turb the surface and subsurface of the land

in the affected area, and will interfere with

other possible uses of the land. A state

may, of course, have standing to redress

injuries to its proprietary interests, such as

the interests arising from property owner-

ship. Snapp, 458 U.S. at 602-03, 102 S.Ct.

858 918 FEDERAL REPORTER, 2d SERIES

at 3266-67. As we have discussed above,

however, Nevada does not own the affect-

ed property, nor has it alleged that it uses

the property for any purpose. Thus, even

assuming that the site characterization pro-

cess will disturb the land, Nevada has

failed to show that it will suffer on account

of that disturbance. Proprietary standing

is therefore not available to Nevada.

Finally, Nevada alleges that it has stand-

ing in its parens patriae capacity to ad-

vance the interests of its citizens. The

Supreme Court has held that a state has a

“quasi-sovereign interest in the health and

well-being—both physical and economic—

of its residents in general,” and can there-

fore sue to protect these interests through

a parens patriae action. /d. at 607, 102

S.Ct. at 3268. In this case, Nevada alleges

that the selection of Yucca Mountain as the

site for a national waste repository will

have a devastating effect on the state’s

vital tourist industry. Although the Su-

preme Court has endorsed parens patriae

suits in general, it has also stated that “{a]

State does not have standing as parens

patriae to bring an action against the Fed-

eral Government.” /d at 610 n. 16, 102

S.Ct. at 3270 n. 16 (stating that with re-

spect to the citizens’ rights in relation to

the federal government, “it is the United

States, and not the State, which represents

them as parens patriae”). Our earlier

case of Washington Utilities & Transpor-

tation Commission v. FCC, 513 F.2d 1142,

1153 (9th Cir.), cert. denied, 423 U.S. 836,

96 S.Ct. 62, 46 L.Ed.2d 54 (1975), must, of

course, give way to the Supreme Court’s

clear statement in Snapp.

Because Nevada has Pailed to allege suf-

ficient facts to demonstrate standing, we

affirm the district court’s dismissal. of the

action. We therefore do not reach the

question of whether the district court was

correct in dismissing Nevada's claims on

the merits.

AFFIRMED.

Edward Lee CLEMMONS,

Plaintiff-Appellant,

¥,

Dale BOHANNON, Robert Tansy, Herb

Maschner, and Robert Mills,

Defendanto~Appetions.

No. 88-2730.

United States Court of Appeals, BY:

Tenth Circuit. 3 q

Oct. 9, 1990, .

Rehearing and Rehearing, En, Banc

Granted Nov. 14, 1990.

tes 3 ing

State prisoner brought civil sania’ ell 2?

tion alleging, inter alia, violations of his

constitutional rights arising out of potas

tary subjection to environmental tobaces’

smoke. Summary judgment for sc

dants was granted by the United States

District Court for the. District of Kar

Dale E. Saffels, J., and prisoner thers |

The Court of Appeals, Seymour, Cireuit '

Judge, held that: (1) exposing prisoner. to

unreasonable risk of debilitating or

nal disease offends “evolving standards of.

decency” protected by the Eighth Amend-

ment; (2) relevant inquiry is whether long-

term exposure to environmental tobacco’

smoke poses unreasonable risk of harm to’

an inmate’s health; and (3) inmate’s indefi- .

nite, involuntary exposure to environmen?

tal tobacco smoke in an eight-foot cell, by} 3

reason of involuntary double-elling with:

smokers, raised triable issue of fact as to"

whether such exposure created urireaso

able risk to health. ay

Reversed and remanded in part A

affirmed in part 7 ae

Tacha, Circuit oes filed a cn

opinion.

a Oe nk ee meme

1. Constitutional Law €=272(2)

Criminal Law € 1213.13)

Prisons ¢17(2) ‘§

State prison policy of permitting indefi; §

nite double-<elling of smokers with not

¥

woe SM ef ew se

cana ~ @ me,

; UNITED STATES DISTRICT Co’ 7 QE SS |

DISTRICT OF NEVADA ,

RENO, NEVADA

UNITED STATES OF ANERICA,

i Plaintiff, AE

vs. MAY

<> :

—

2 8

STATE OF NEVADA, ET AL., U.S. ATTORNEY, LAS VEGAS, ee

nn MINUTES OF THE COURT

DATE: May 23, 1990

PRESENT: _ HOWARD D. McKIBBEN U.S. District Judge

Deputy Clerk: Cliff Chamblee Reporter: Lesley Clarkson

Counsel for Plaintiff(s) Karen Eabert

Counsel for Defendant(s) Brian McKay and Harry Swainston

COURT CONVENES AT 11:30 A.M. & CONCLUDES AT 12:10 P.M.

MMSIXRE XORRERXENXRNAMRERRX

PROCEEDINGS: HEARING MOTION OF DEFENDANTS FOR STAY OF PROCEEDINGS (#6):

Hearing is held on the motion of dGefendants for stay of proceedings,

or in the alternative, to dismiss.

Arguments made.

IT IS ORDERED that the motion for stay of proceedings filed on behalf

of defendents (#8) is GRANTED, and this action is stayed pending final

resolution of the action presently pending in the Ninth Circuit Court

of Appeals, case number 90-70004.

Court directs counsel in this action to file pleadings regarding any

action taken by the Ninth Circuit Court of Appeals.

A formal order from this Court will subsequently be filed.

CAROL C. sa CLERK

SOG

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(/ (Deputy Clerk

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SUNETED STATES OP> AMERICA, | é

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plaintifé, ‘ve

vs. . et L_ Aken

STATE OF NEVADA, ET AL.»

) CIVIL-S=_90-65-HDM (RJJ)

Defendants. )

) MINUTES OF THE COURT

)

) DATE: December 14, 1990

PRESENT: HOWARD D. MCKIBBEN 0,8. District Judge

Deputy Clerk: Cliff Chamblee Reporter: Oma Rose-Recordec

Counsel for Plaintiff (s) Karen L. Egbect

Counsel for Defendant (8) Haccy Swainston, Deputy Attorney General

couRT CONVENES AT 10: 6 A.A. 7a.

MEAT ORD DROP NCOCRANEERS TELEPHONE CON

FILED ON BEHALF OF

PENDING U.S. SUPREME COURT DECISION,

PROCEEDINGS: HEARING MOTION

Heacing held and acg

IT IS ORDERED

plaintiff to

congideced filed

be filed no latec

filed by Januacy 25, 1991.

aftec all oppositions

foc summacy judgment,

The stay in this

than the issues

ce Fa bunt, Garemen

that the stay in thi

file a meticn for sum

as of this date;

than Januacy 15,

and ceplies ace

1991,

action shall cemain in effect foc all puc

foc summacy judgment.

FERENCE CALL

s action is lit

macy judgment,

any opposition

DEFENDANT TO MAINTAIN STAY

ETC. (#22)

uments made telephonically.

ted only for the

which will be

by defendants shall

and any final ceply shall be

filed with cespect to the motion

this mattec shall stand submitted.

poses othec

CAROL C. FITZGERALD, CLERK